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Bassok, Or --- "Missing in action: the human eye" [2016] ELECD 643; in Fabbrini, Federico; Jackson, C. Vicki (eds), "Constitutionalism Across Borders in the Struggle Against Terrorism" (Edward Elgar Publishing, 2016) 283

Book Title: Constitutionalism Across Borders in the Struggle Against Terrorism

Editor(s): Fabbrini, Federico; Jackson, C. Vicki

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781784715380

Section: Chapter 14

Section Title: Missing in action: the human eye

Author(s): Bassok, Or

Number of pages: 22

Abstract/Description:

In this chapter I argue that the growing involvement of lawyers in approving military operations, coupled with the disappearance of the soldier’s unmediated gaze of the battlefield, increase the probability for the execution of a certain kind of manifestly unlawful orders. In recent decades, western states have put their faith in jurists in their attempt to tackle the problem of human rights violations during warfare. Through setting up an international web of legal rules, now known as International Humanitarian Law (previously known as the law in war), and by enhancing the role of jurists as the most equipped experts to detect and prevent violations of this law, western states have tried to ensure a more humane battlefield. In this chapter I argue that this effort has inherent limitations. I show that the growing reliance on lawyers to approve the legality of military operations makes every order executed according to a lawyer’s “clearance” legal on its face. Militaries now prefer to expropriate the decision of legality from the combatants and view an order approved by lawyers to be legal. There are still grave concerns that even if militaries heed the legal advice given by military lawyers, violations of humanitarian law will still occur because military lawyers are more prone to divert from accepted standards of legality.